0120090128
06-11-2010
Abraham Li, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Abraham Li,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120090128
Hearing No. 510-2008-00199X
Agency No. 1H-342-0001-08
DECISION
Complainant filed an appeal from the agency's September 24, 2008 final
order concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Part-Time Regular Mailhandler at the agency's Manasota Processing and
Distribution Center facility in Sarasota, Florida. On November 29, 2007,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (Asian), national origin (Asian), and color
(non-white) when:
On or about October 23, 2007, the agency charged complainant
with unsatisfactory performance and terminated complainant's
position with the agency.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. The AJ assigned to the case granted the agency's motion
for a decision without a hearing and over the complainant's objections,
issued a decision without a hearing on September 15, 2008.
In her decision, the AJ found that neither party disputed the material
facts. For purposes of her decision, the AJ assumed, without so finding,
that complainant had established a prima facie case of discrimination
based on race, national origin and color. Even so, the AJ found that
the agency had articulated a legitimate, non-discriminatory reason
for its actions that complainant was unable to show was a pretext for
discrimination. The agency, observed the AJ, had rated complainant's
performance as continuously unsatisfactory during his probation and
stated in complainant's separation notice that complainant had failed to
follow directions. The AJ considered the statements of complainant's
supervisor which indicated that complainant had been observed taking
extended breaks. The AJ further noted that complainant did not deny that
he had taken extended breaks. The AJ considered complainant's claim that
other employees did not follow the rules but they were not terminated.
The AJ found the evidence showed that other regular employees who
failed to follow instructions had received discipline. Significantly,
complainant did not dispute the agency's evaluation of his performance.
Complainant explained that he was unable to complete work assignments
in what he considered an unrealistic time frame. Complainant also
stated that he was received less assistance than other employees hired
at the same time he was hired. Complainant's manager, S1, stated
that complainant was assigned to a different operation (208) than the
three other employees (operation 010) hired together with complainant,
and that he had different tasks to complete.
The AJ found that ultimately, complainant was separated for his failure
to achieve satisfactory performance evaluations during his probation
as well as his failure to follow instructions. The AJ considered the
evaluation notes of S2, complainant's immediate supervisor. S2 evaluated
complainant's performance at 30 days, after 60 days and again after 80
days. S2 found complainant's performance was deficient and accordingly,
complainant's position was terminated. The AJ found that complainant
did not establish the agency's reasons for his termination were untrue
or a pretext to mask discrimination. Therefore, the AJ found that
complainant did not establish that discrimination occurred as alleged.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to on any basis.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find the AJ properly issued her decision without
a hearing. We consider the statement of complainant's co-worker, E1,
who states that he observed another probationary employee asleep while on
duty, and confirmed that other employees take extended breaks. Further E1
stated that S2 had observed this conduct, but unlike complainant, those
employees were not terminated during probation. Taking this evidence in
the light most favorable to complainant, we consider E1's observation
as true. Nevertheless, we find the undisputed evidence shows that
that complainant was terminated, not only for his failure to follow
instructions, but also for unsatisfactory performance during probation.
The record reveals a series of deficient performance evaluations that
complainant received during his probation, which evaluations did not show
any progress despite complainant's acknowledgement of areas in which
he needed to improve. Moreover, we consider the undisputed statement
of S2 who described that he observed complainant taking extended breaks
on repeated occasions including the day immediately after he was warned
about such conduct. We find no material disputes remain to be resolved
by a hearing and that the AJ properly issued her decision finding no
discrimination.
Based on a thorough review of the record we AFFIRM the agency's final
order, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 11, 2010
__________________
Date
2
0120090128
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090128